111 S.W.2d 167 | Mo. | 1937
Lead Opinion
The court sustained the joint demurrer of the Attorney General and the State Auditor to plaintiff's petition; and, plaintiff declining to plead further, judgment went accordingly.
The State officials say that, under said Sales Tax Act, plaintiff's controversy is with the retailer and the building contractor (hereinafter, for convenience, designated seller); that said act does not permit either of said officials to institute a direct action against a purchaser of tangible personal property but only against the seller; that any controversy on the part of said State officials would involve the liability of the seller for the tax; and, hence, plaintiff, the purchaser, may not maintain the action against said defendants, citing Sections 29 and 38 of said act. They thus briefly present this issue for our determination. The tax is imposed upon "the sale, service or transaction;" and the "seller, . . . is directed to collect the tax from the purchaser . . ." "at the time of making . . . such sale. . . ." and is made responsible for its collection and remittance (Sec. 5), under rules and regulations to be made, promulgated and enforced *25
by the State Auditor to facilitate an accounting for and the payment of said tax (Sec. 6). [1] The tax is made a debt due the State; and in case of a failure to pay, the State Auditor and Attorney General, in their respective official capacities and in the name of the State, are directed to institute and prosecute appropriate actions to force payment (Secs. 29, 30, 38), the remedies specifically provided by the act being cumulative and not subject to the rules of law relating to the election of remedies (Sec. 31). [2] The purchaser is the taxpayer and the seller, although responsible, is the agent or conduit through which the State seeks to facilitate the accounting for and the collection of the tax. [See City of Covington v. State Tax Commission,
[3] The remaining issues presented, briefed and argued by the litigants are not grounds for demurrer (Sec. 770, R.S. 1929, Mo. Stat. Ann., p. 1000). The School District maintains that said act does not and the State officials maintain that it does impose the tax under the facts alleged in plaintiff's petition. The trial court sustained the demurrer of the State officials, and the only issues expressly decided by the trial court to which exceptions would lie on behalf of plaintiff on appeal (see Sec. 1061, R.S. 1929, Mo. Stat. Ann., p. 1346) were the issues presented by the demurrer. Now, we are asked to determine the applicability or nonapplicability of said Sales Tax Act to the facts alleged in said petition, plaintiff's alleged cause of action on the merits, with said petition standing confessed sufficient for a determination of said issues. This, we may not do, because: The function of this court here invoked is that of a court of review (our appellate jurisdiction) under the Constitution of this State (Art. 6. Sec. 12; Amend. 1884, Sec. 5; pp. 108, 118, R.S. 1929; 15 Mo. Stat. Ann., pp. 561, 644) as well as said Declaratory Judgment Act (Laws 1935, p. 219, sec. 7); and until the trial court has by its judgment declared that under the facts the Sales Tax Act does or does not apply issues involving the applicability or nonapplicability of said act to the facts do not exist for review. Trial courts should not be convicted of error in respect to rulings precluded from their consideration; i.e., of errors not committed.
The judgment is reversed and the cause remanded. Cooley andWesthues. CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur. *26
